18 Fla. L. Weekly Supp. 319a
Online Reference: FLWSUPP 1803TREA
Insurance — Personal injury protection — Demand letter — Where medical provider failed to provide presuit demand letter, proper remedy is dismissal of suit with leave to amend — Insurer shall not be liable for attorney’s fees and costs if full amount demanded is paid
TREASURE COAST FAMILY WELLNESS, LLC, a Florida Corporation (assignee of Garcia, Pedro), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant. County Court, 19th Judicial Circuit in and for Martin County. Case No. 08-2463 SC. October 27, 2010. Stewart R. Hershey, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT’S FOURTH AFFIRMATIVE DEFENSE(INVALID DEMAND LETTER)
THIS CAUSE came before the court for hearing on September 27, 2010 and the court, having reviewed the motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a P.I.P. suit. Defendant has asserted as a defense to payment that Plaintiff has failed to comply with the P.I.P. pre-suit notice provisions set forth in F.S. s. 627.736(10) and, therefore, has failed to satisfy a condition precedent to suit. Plaintiff responds that the proper remedy is not summary judgment but either abatement of the action or dismissal of the complaint with leave to amend.
Conclusions of Law: This court finds that the matter is procedural in nature and not a determination on the merits. As such, the court will treat the Defendant’s Motion for Summary Judgment as a Motion to Dismiss and hereby dismisses the complaint with leave to amend.
Plaintiff shall have ninety days from the date of this order to re-submit the demand and amend the complaint in conformity with the amended demand.
Defendant shall not be liable for attorney’s fees and costs if the full amount demanded is paid in accordance with F.S. s. 627.736(10).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment as to its fourth affirmative defense ‘invalid demand letter’ is DENIED. The complaint is dismissed without prejudice and with leave to amend within 90 days of this order.
